Will Europe be fooled by Ukrainian government once again?

President of Ukraine Petro Poroshenko (L) with European Union Council President Donald Tusk (C) and European commission President Jean-Claude Juncker (R) during a news conference at the end of EU Ukraine Summit in Brussels, July 9, 2018.

Will Europe be fooled by Ukrainian government once again?

When it comes to fooling people at home and abroad, Ukrainian President Petro Poroshenko has no equals.

After derailing all other law enforcement reforms, he is planning to sabotage Ukraine’s High Anti-Corruption Court, which is currently being selected.

To fool the West, he has agreed to the creation of the Public Council of International Experts (PCIE), a foreign advisory body. He wants to use the foreign experts as a façade to legitimise a fake selection process and to create a puppet anti-corruption court.

Poroshenko and his allies expect the PCIE to veto some of the worst candidates, which would be the ideal scenario for him. If the PCIE only vetoes the worst, the whole procedure will be useless and meaningless.

The High Qualification Commission of Judges will just select exclusively bad (politically dependent, incompetent or corrupt) candidates, and only substandard candidates will be appointed regardless of whether some of them are vetoed by the PCIE or not. There will be no good and independent candidates to choose from.

Imagine that you have a basket of rotten apples, and the PCIE can throw some of them out. The end result will not matter, however, because the remaining apples will also be rotten.

In this scenario, with the PCIE acting as a smokescreen, it still will be up to the discredited High Qualification Commission to select and assess candidates.

The absence of an objective assessment methodology will make it very easy for the High Qualification Commission to rig the competition and recruit politically loyal judges. Under its methodology, the commission assigns to candidates up to 210 points out of 1,000 for legal knowledge and practical tests and up to 790 points without giving any explicit reasons.

USAID has recommended increasing the percentage of objective criteria (legal knowledge and practical tests) in the methodology but the High Qualification Commission ignored the recommendations.

The Public Integrity Council, the judiciary’s civil society watchdog, believes that last year’s Supreme Court competition was rigged in favour of political loyalists by the High Qualification Commission, which appointed judges implicated in corruption, unlawful rulings and political cases.

However, there is a way for the PCIE to try to make the competition of the anti-corruption court work. It is, in fact, the only way.

Under the law, if a majority of the members of the High Qualification Commission and PCIE combined votes for a candidate, he continues participation in the competition, given that at least three out of the PCIE’s six members vote for him.

The PCIE can use the wording of the law not just to veto the worst candidates (negative selection) but to select the best ones – i.e. assume positive selection functions.

The High Qualification Commission is afraid that the PCIE might actually have an impact – that is exactly why the commission has been dragging its feet on appointing six PCIE members out of 12 nominees since mid-September. The commission’s aim is to derail the process by missing all deadlines.

Anti-corruption infrastructure

But even if an independent anti-corruption court is selected, Poroshenko has ensured that Ukraine’s kleptocracy will not be jeopardised.

Rulings of the yet-to-be-created anti-corruption court can be reviewed by the discredited and politically loyal Supreme Court, which will be able to cancel them.

Poroshenko has also made sure that the anti-corruption court will have no genuine cases to consider. The anti-corruption prosecutor’s office, which prosecutes corruption cases, is at the president’s beck and call, and the National Anti-Corruption Bureau (NABU), which investigates graft, has been emasculated.

Chief Anti-Corruption Prosecutor Nazar Kholodnytsky was recorded on audio in February pressuring prosecutors and judges and obstructing major corruption cases. In July, Kholodnytsky’s office also closed the embezzlement case against Interior Minister Arsen Avakov’s son, Alexander Avakov, and the minister’s ex-deputy Sergey Chebotar despite massive evidence against them, including video footage of them discussing a corrupt deal.

Another new agency – the National Agency for Preventing Corruption – is tasked with checking asset disclosures but has failed to punish a single top official for violations since it was set up in 2015. Hanna Solomatina and Oksana Divnich, ex-top NAPC officials, said in 2017 that the agency was involved in large-scale corruption and was completely controlled by the Presidential Administration.

The only relatively successful new agency, the NABU, has been paralyzed and made powerless because it can’t do anything without the authorization of Chief Anti-Corruption Prosecutor Kholodnytsky, who is blocking all major NABU cases.

To add insult to injury, Poroshenko and his allies are trying to replace NABU Chief Artem Sytnyk with their loyalist. Poroshenko has already had three of his proteges appointed as auditors of the NABU in an effort to fire Sytnyk as a result of a negative audit.

Another way of getting rid of Sytnyk is an ongoing criminal case against him. While top-level officials remain unpunished for mind-boggling corruption, Sytnyk is being investigated over the alleged laughable “crime” of divulging a “state secret” by talking to journalists off the record.

In September Prosecutor General Yury Lutsenko said that Sytnyk would be charged in the criminal case.

Ukraine’s dysfunctional law enforcement can be illustrated with the fact that the only top Ukrainian official ever jailed for corruption was ex-Prime Minister Pavlo Lazarenko. But he was tried in the U.S., not Ukraine: he was sentenced in 2006 to nine years for extortion, money laundering and fraud.

Another heavyweight linked to Ukraine – Paul Manafort – was convicted of tax fraud and bank in the U.S. in August. It took less than a year to convict Manafort, a former lobbyist for ex-Ukrainian President Viktor Yanukovych and US President Donald J. Trump’s ex-campaign chief who was indicted in October 2017 and convicted of eight charges of tax and bank fraud this past summer. Manafort has agreed to a plea bargain for a second set of charges in exchange for his cooperation with the Robert Mueller investigation into the 2016 US Presidential election.

In contrast, not a single top official of the Yanukovych-era and not a single incumbent top official have been sent to jail in Ukraine since 2014.

Implications for Europe

Why does this matter to Europe and the West?

First, Western taxpayers are paying for the Ukrainian government’s continued corruption.

The creation of an anti-corruption court is one of the requirements that Ukraine has to meet for the International Monetary Fund to disburse another $2 billion tranche out of a $17.5 billion package.

In September the European Union signed an agreement to disburse another €1 billion to Ukraine.

In addition, the European Union, the Council of Europe, the Organization for Security and Cooperation in Europe and USAID have spent money on law enforcement and rule of law reforms in Ukraine through specific projects.

Moreover, Ukrainian oligarchs, officials and mafia bosses, who are escaping justice both in Ukraine and in Europe, are financing European politicians and buying up assets in Europe.

The families of Odessa Mayor Gennady Trukhanov, who has been charged in a corruption case, and his business partners Alexander Angert, and Vladimir Galanternik have purchased high-end property in London. According to an Italian police dossier, Trukhanov and Angert were among the leaders of an Odesa mafia gang in the 1990s.

Ukrainian oligarch Viktor Pinchuk has donated millions to the Clinton Foundation and ex-British Prime Minister Tony Blair’s foundation and has been awarded a seat on the board of the Washington D.C.-based Atlantic Council. He has also paid various European politicians and officials to speak at his Yalta European Strategy forums.

Meanwhile, Ukrainian oligarch Dmitry Firtash has donated money to the UK’s Conservative Party and there is evidence for his links to Austrian authorities. The latter might explain the fact that Austria has failed to extradite Firtash, who has been charged by the Federal Bureau of Investigations with bribing Indian officials, to the US since 2014.

Poroshenko himself has a villa in Spain, while the trust that runs his assets is based in Switzerland.

Ukraine is, in fact, exporting corruption by corrupting European countries.

And European taxpayers are footing the bill. Maybe they should think of either making their governments strictly enforce anti-corruption measures in Ukraine or voting them out.